Should Stoners Have Guns?
It depends on how much John Adams drank, apparently.
The Supreme Court’s argument last week in United States v. Hemani was lively and at times illuminating.
But not because it clarified the Second Amendment. Rather, it showed how unworkable the Court’s current framework has become.
For nearly two hours, the justices and the lawyers debated drugs, alcohol, gummies, cough syrup, Ambien, ayahuasca, anabolic steroids, and marijuana. They also wandered into the drinking habits of John Adams, James Madison, and Thomas Jefferson.
The spectacle was entertaining. It was also revealing.
What it revealed was the incoherence of the Court’s current Second Amendment framework.
The case itself is straightforward. Ali Hemani, a Texas resident, was charged under a federal law that makes it a crime for anyone who is “an unlawful user of or addicted to any controlled substance” to possess a firearm. Federal agents found a Glock pistol and marijuana in his home. Hemani admitted he used marijuana roughly every other day.
A federal district judge dismissed the charge, construing the statute to require being under the influence of drugs at the time of possession. The Fifth Circuit agreed. Now the Supreme Court must decide whether the statute violates the Second Amendment as applied to Hemani.
But the case arrives as the latest stop in a very peculiar doctrinal landscape. In 2022, the Court adopted a new test for gun regulations. Under that framework, restrictions on citizens’ gun use are constitutional only if they are consistent with the nation’s historical “tradition” of firearms regulation, especially, but not exclusively, around the time of the founding.
Actually, the court has hedged even this test by explaining that a historical regulation doesn’t have to be identical to a current law but “relevantly familiar.” And the relevant historical analogue can come from the 19th century as well as the founding.
That’s why courts confronting challenges to gun restrictions have to delve into antediluvian gun regulations as well as confront a thicket of questions about which historical laws and periods matter.
Little wonder that the Court’s guidance has created chaos in the lower courts. Monday’s argument illustrated why.
Representing the federal government, Principal Deputy Solicitor General Sarah Harris defended the statute by invoking that historical tradition.
The Second Amendment, she argued, allows the government to “temporarily disarm habitual marijuana users while they persist in using frequently.” That’s a sensible, if not irresistible, line of argument, but to frame it to the Court’s liking, Harris needed to analogize to early American laws dealing with “habitual drunkards.”
From that premise followed an extended seminar on the alcohol consumption of the Founding generation.
Justice Neil Gorsuch took the lead.
“John Adams took a tankard of hard cider with his breakfast every day,” he noted. “James Madison reportedly drank a pint of whiskey every day.”
Thomas Jefferson, Gorsuch added, claimed he was not much of a drinker. He merely had three or four glasses of wine a night.
Would those men, Gorsuch asked, count as “habitual drunkards”? Would they therefore be disarmed under the government’s theory?
The courtroom laughed.
But the question captured the core difficulty. What exactly counts as “habitual” drug use? More importantly, why should that be the linchpin of gun regulation?
The justices proceeded through a parade of modern hypotheticals.
What about someone who takes one sleep gummy every few nights?
What about a person who uses marijuana once or twice a week?
Justice Amy Coney Barrett posed a different example. Suppose someone takes a spouse’s Ambien tablet without a prescription. Under federal law, that is technically unlawful drug use.
Would that strip the person of the right to possess a gun? (Harris answered that it would.)
Justice Clarence Thomas asked about anabolic steroids.
Justice Elena Kagan raised the psychedelic ayahuasca. When someone is under its influence, she noted, “reality dissolves.”
Justice Sonia Sotomayor pressed the government on a simpler point: where, exactly, does the statute define an “unlawful user”?
It doesn’t.
The argument stretched on for nearly two hours and featured discussion of cough syrup, prescription stimulants, sleep aids, and psychedelics.
There is an element of comedy here, but it’s not the image of baby boomers and Gen Xers in robes talking about drug use. The justices know as much, or as little, about different controlled substances as the average senior citizen (extra points to Justice Kagan for her hypothetical about ayahuasca), and their questions were thoughtful and cogent.
They just went to the wrong issue.
Why should we care whether marijuana use today resembles the drinking habits of colonial “habitual drunkards”?
The pertinent question in the case is much simpler: does the drug use in question create a meaningful risk that firearms will be used dangerously?
That is the point that actually matters.
And it can be framed in two ways.
First, it may simply be the best reading of the statute Congress enacted in 1968 after the assassinations of Martin Luther King Jr. and Robert F. Kennedy. Congress sought to keep guns away from people whose behavior made them dangerous or irresponsible.
Alternatively, the Second Amendment itself may require tailoring the statute to avoid infringing the individual right recognized in Heller and its progeny.
Either way, the focus should be the same: dangerousness, not colonial drinking customs.
Justice Ketanji Brown Jackson, as she does repeatedly with her lines of questioning in oral argument, highlighted the deeper problem.
When the government suggested that “it is a fair judgment” that frequent users of drugs like heroin or PCP are exceptionally dangerous even if they are not addicts, Jackson acknowledged that the judgment might be sensible; but she then pointed out that it was “precisely what” the court’s Second Amendment jurisprudence “prohibits, that we don’t credit the judgments of the modern legislature about who is dangerous and who needs to be disarmed as a result.”
But under the Court’s current Second Amendment doctrine, she observed, courts are not supposed to credit those modern legislative judgments. In fact, that is precisely what the Court’s jurisprudence rules out. Instead, judges must hunt for historical analogues from the eighteenth or nineteenth century.
Jackson’s comment captured the conceptual trap the Court has created for itself. Modern legislatures evaluate modern risks. But the Court has told lower courts to look backward instead.
Justice Barrett came closest to reframing the issue.She agreed that legislatures can keep guns away from dangerous people. But she pressed the government on whether the statute actually reflects a judgment about dangerousness.
Consider the Ambien example, she said.
If one spouse has a prescription and the other does not, what makes the second person more dangerous?
It cannot be the drug itself.
The difference is simply legal status.
“And so too here with the marijuana,” Barrett said. “I just don’t see anything in the scheme that actually reflects Congress’s judgment that this makes someone more dangerous.”
That question points in the right direction. But even it remains constrained by the Court’s doctrinal framework.
Imagine a simple hypothetical.
Suppose scientists suddenly discovered that snuff—a tobacco product popular among the founders—caused certain users to become violently psychotic.
Under any sensible reading of the 1968 gun law, habitual users of that substance would fall squarely within the category of people Congress intended to disarm.
Not because of an analogy to colonial cider drinkers. On the contrary, the Court’s historical tradition test would dictate requiring snuff users to have a constitutional right to bear arms.
Because the drug makes people dangerous and dangerous people should not have guns. That is the logic Congress relied upon. And it is the logic courts should apply.
Sometimes that judgment might require expert evidence. It might involve administrative agencies tasked by Congress with evaluating the effects of particular drugs. That’s how courts and society should evaluate scientific questions, such as when is drug use dangerous.
Justice Samuel Alito raised an objection during the argument. How, he asked, could courts realistically conduct individualized inquiries about the effects of particular drugs?
The answer is simple.
They already do.
Courts assess dangerousness and impairment all the time in criminal law. Legislatures routinely draw distinctions based on risk. Agencies develop technical expertise about substances and their effects.
Yet the Court’s broader trend in administrative law has been to weaken those institutions. It has cut back on agency authority and imposed doctrines that limit Congress’s ability to delegate policy decisions.
The result is a strange combination.
The Court distrusts modern expertise. But it also insists that judges conduct elaborate historical analysis.
Which leaves everyone squinting at the drinking habits of eighteenth-century statesmen.
When the opinion comes down this summer, expect pages of discussion about “habitual drunkards,” founding-era drinking customs, and the elusive meaning of “historical tradition.”
The Court may not affirm the Fifth Circuit outright. It could remand the case and ask the lower courts to apply its framework more carefully.
In other words, to make sense of the hash (no pun intended).
But the clean solution is sitting in plain view.
The Second Amendment does not prevent the government from disarming people whose drug use makes them dangerous with firearms.
Courts should apply ordinary tools of statutory interpretation to determine when that condition exists. They should rely on expertise and evidence, not scavenger hunts through colonial tavern records.
Talk to you later.
I’d trust a stoner before a drunk any day!🇺🇸
I would prefer people who have a domestic violence record not have guns over stoners.